Section 32 Mental Health (Forensic Provisions) Act Applications

In December 2011, actor Matthew Newton was charged with assault after an altercation with a taxi driver in Crow’s Nest. In March 2012 he failed in his bid to have his charges dealt with under mental health legislation.

Appearing in North Sydney Local Court, Newton’s lawyer made an application to have the charges against him dealt with under section 32 of the Mental Health (Forensic Provisions) Act. The court was apparently told that Newton was suffering from bipolar and obsessive compulsive disorder at the time of the alleged incident and asked the magistrate to allow Newton to remain in America, where it was reported arrangements had been made to place the actor under the care of an experienced nurse.

The Magistrate held that there had been a failure to establish a ‘causal connection’ between Newton’s mental illnesses and his alleged actions in assaulting the taxi driver. Our respectful position is that it is unnecessary to establish a causal connection, though it may be of assistance in making the application. A person may be perfectly normal at the time of committing an offence, but develop a mental illness or condition subsequently. In such an example, the applicant would not have a causal connection with the offence but still satisfy the first limb of the criteria to determine whether section 32 may be applicable. What must be established is that the person is suffering from a mental illness or condition, or was at the time of the alleged offence.

There have been a number of high profile cases in the media where criminal defence lawyers have made an application to have their client dealt with under the Mental Health (Forensic Provisions) Act. There are no doubt many people reading the media reports on Newton’s section 32 application who are sceptical of his reasons for doing so. Adverse publicity to the arrest or Local Court application, particularly in genuine cases, at least has the positive benefit of increasing awareness of mental health issues in Australia – over 4 million Australians are said to have mental health problems in any given year. However, there are a high percentage of persons with psychological and psychiatric problems languishing in prison who may not have had appropriate treatment and may have missed the genuine and appropriate opportunity to make this type of application.

It is entirely inappropriate to ignore members of society with psychological and psychiatric problems until such time that they are facing court for serious criminal offences. There are many services available to persons within the community who need assistance. The aim of the court is to balance the needs of the community in dealing with those who allegedly commit criminal offences, and the needs of the individual to receive appropriate treatment so that they will not re-offend. All too often we see people who are ‘repeat offenders’ who have never had appropriate advice about mental health treatment and a section 32 application.

In an appropriate case, a section 32 application is the best course of action. It certainly should not be viewed as a way to avoid a criminal charge. In fact having an offence dealt with in accordance with section 32 can sometimes have more onerous consequences for a defendant than a sentence imposed according to law by the implementation of a Treatment Plan that may tie the applicant to a strict regime of treatment for a period of at least 6 months.

What is a section 32?

Essentially a section 32 order enables the Local Court to divert people with certain psychological or psychiatric conditions who have been charged with a criminal offence out of the criminal justice system by imposing a treatment plan rather than punishment. A person granted relief pursuant to section 32, is not convicted, though a record is made that they were dealt with in such fashion.

When is section 32 applicable?

Section 32 applies if it appears to the Magistrate that the defendant is (or was at the time of the alleged offence):

(a) developmentally disabled; or

(b) suffering from a mental illness; or

(c) suffering from a mental condition for which treatment is available in a mental health facility;

but is not a “mentally ill person” as defined within the Mental Health Act. In brief, a mentally ill person is someone who is at risk of harming themselves or harming another.

A Magistrate must not only be satisfied that the application satisfies the threshold criteria, but must also be satisfied that it is more appropriate than not in dealing with the matter under section 32 to produce a better outcome both for the individual and the community. In other words, it is a discretionary matter for the Court.

A section 32 application may be appropriate for people suffering from a wide range of conditions including adjustment disorder, intellectual disability, autism spectrum disorders such as Asperger disorder, Attention Deficit Disorder (ADD) and Attention Deficit Hyperactivity Disorder (ADHD). People suffering from depression, post-traumatic stress disorder, anxiety and bipolar may also be appropriate applicants for a section 32 application.

Other considerations that the court is bound to consider include the seriousness of the alleged criminal offence and the degree of planning (if any) associated with the commission of that conduct.

If you have been charged with a criminal offence and believe you may suffer from a mental health condition it is essential to seek advice from one of our criminal defence lawyers as to what action could be taken.

What orders can a Magistrate make?

A Magistrate may either make an order dismissing the charge or discharge the defendant:

·into the care of a responsible person (unconditionally or subject to conditions);

·on the condition that the defendant obtain mental health assessment and/or treatment; or

·unconditionally.

Note that if conditions are attached to the order and the defendant breaches any of these conditions within 6 months of the order they may be brought back to the court to have the charges re-dealt with – which may reignite consideration about the appropriateness of dealing with the matter under section 32.

A section 32 order does not amount to a finding of guilt, nor is it a finding of not guilty. Because it is not a conviction it does not form part of a person’s criminal record. If the person is brought back before the court for another charge, however, any previous section 32 orders may be taken into account.

Making a section 32 application

A section 32 application is normally raised by the defendant’s lawyer but it can be raised by any party to the proceedings, including the magistrate, at any time during the hearing of the matter.

You do not have to enter a plea before making a section 32 application. An application under section 32 can be made at any time during the proceedings, including after a plea of guilty has been entered and even if the defendant has already been found guilty.

Magistrates are unlikely to deal with charges under section 32 unless they are satisfied that the defendant will receive appropriate care and follow-up to ensure that they will not re-offend. For this reason the application should be supported by a psychiatric or psychological report and a detailed treatment plan.

Am I eligible for a section 32 order?

Our criminal defence solicitors will be able to assist you with any type of police charges and will advise you of the best way to navigate the court system to achieve the best possible outcome. If you are charged with a criminal offence, whether or not you may be suffering from a mental health condition, you should seek expert legal advice

Many people are unaware that they suffer from a psychological or psychiatric condition. Some people are aware, but forget to or deliberately do not take medication or continue with treatment. Others are aware that they have a problem, but do not notice the increased effect of the condition when under stress or as a reaction to an event.

The best indicator of eligibility for section 32 is the opinion of a psychologist or psychiatrist. An experienced lawyer from Nyman Gibson Miralis will be able to point you in the direction of seeking assistance and obtaining a report for the consideration of this important question.